283 F.3d 1275 (11th Cir. 2002), 01-13186, Pace v Capobianco

Docket Nº:01-13186
Citation:283 F.3d 1275
Party Name:PATRICIA PACE, as surviving parent, personal representative and Administratrix of the Estate of Alfaigo Davis, deceased, Plaintiff-Appellee, v. NICHOLAS CAPOBIANCO, individually and in his official capacity as Deputy Sheriff of Richmond County, GARY CLARK JR., individually and in his official capacity as Deputy Sheriff of Richmond County, Defendant
Case Date:March 01, 2002
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1275

283 F.3d 1275 (11th Cir. 2002)

PATRICIA PACE, as surviving parent, personal representative and Administratrix of the Estate of Alfaigo Davis, deceased, Plaintiff-Appellee,

v.

NICHOLAS CAPOBIANCO, individually and in his official capacity as Deputy Sheriff of Richmond County, GARY CLARK JR., individually and in his official capacity as Deputy Sheriff of Richmond County, Defendants-Appellants.

No. 01-13186

United States Court of Appeals, Eleventh Circuit

March 1, 2002

Page 1276

Appeal from the United States District Court for the Southern District of Georgia

Before EDMONDSON, HILL and LAY[x], Circuit Judges.

EDMONDSON, Circuit Judge:

This case is about the use of deadly force, the Fourth Amendment and qualified immunity. We must determine whether two policemen are entitled to qualified immunity for their act of shooting a fleeing suspect. The case is before us to review the denial of summary judgment.

BACKGROUND

a.

We have resolved all factual disputes in the record in Plaintiff's favor when sufficient, competent evidence was present to support Plaintiff's version of the disputed facts. Viewed in that light, these circumstances are material.

On 21 February 1998, Alfaigo Davis ("Davis") was pulled over at night for driving without his headlights on by Deputy Phillip Barnett.1 Davis had no driver's license with him and gave a false name and social security number to Deputy Barnett: when Deputy Barnett ran the social security number, it came back as belonging to a woman. Deputy Barnett ordered Davis to Page 1277

get out of his car and to place his hands on the hood of the police car.

Davis, after asking if he was under arrest and receiving a negative response, placed his hands on the hood of the car. As Deputy Barnett patted him down, Davis refused to remain still.2 A struggle ensued,3 and Davis broke away from Deputy Barnett and began to run.

Davis, with Deputy Barnett about five steps behind him, ran around a house and returned to Davis's car. Davis started his car. But, Davis's window was open a little. Deputy Barnett, with his gun in one hand and pepper spray in the other, reached through the opening and sprayed pepper spray at Davis's face. Undaunted, Davis drove off.

Deputy Barnett returned to his car and used his radio to inform dispatch that Davis was fleeing. A signal 32 -- officer needs assistance, all units (on or off-duty) drop what you are doing and proceed to that officer's location -- was initiated at some point. (Deputy Barnett testified that the dispatcher initiated the signal 32.) Deputy Barnett began his pursuit of Davis. A high-speed chase ensued.

Many police cars responded to the signal 32 radio call. And, at least five police cars were directly involved in the pursuit of Davis. During the pursuit, Davis drove dangerously in several ways. First, Davis made a left turn in front of Deputy Leslie Boatright, forcing Deputy Boatright to stop his police car. Second, Davis swerved his car at police cars coming towards him from the opposite direction.4 Third, Davis drove through someone's front yard at 50-60 mph and passed by their house, causing Deputy Capobianco to fear for the safety of the people he could see inside the house.5 Fourth, Davis almost hit an elderly motorist head-on when he (Davis) was driving on the wrong side of the road: the elderly motorist avoided the collision by stopping on the shoulder of the road when he saw the approaching police lights; the motorist did not see Davis until he passed because Davis's headlights were still not on. Fifth, Davis accelerated towards a police car trying to block the road, causing the officer driving that car to move the car out of the road to avoid a collision.

After roughly 15 minutes of high-speed, reckless flight, Davis turned into a dead-end cul-de-sac. Davis drove to the back of the cul-de-sac and stopped. Deputy Boatright then stopped his car on the left side of the cul-de-sac (to the left of Davis's car), Deputy Clark stopped his car on the right side of the cul-de-sac (to the right of Davis's car), Deputy Capobianco stopped his car behind Deputy Clark's car (behind Davis's car), and Deputy Shepard stopped his car behind Deputy Capobianco's car. The cars (Boatright's, Clark's, and Capobianco's) effectively blocked in Davis's car on three sides, leaving the area in front of Page 1278

Davis's car unobstructed by police cars.6 Davis remained in his car with the engine running. Deputy Clark and Deputy Capobianco, among other deputies, jumped out of their cars and yelled at Davis to "get out of the car."

Within a moment of Davis's car stopping (at most, a very few seconds), Deputy Clark -- from a position in front of Davis's car -- fired two shots at Davis through the front windshield. At the same time, Davis's car began moving forward. Deputy Clark fired five more times as Davis's car moved forward. Deputy Capobianco also fired five times as Davis's car moved forward. The car then crossed a yard and stopped when it struck the pole of a basketball goal in a residential backyard. Davis was dead. The whole event at the cul-de-sac was a matter of seconds.

b.

In two specific instances, we conclude that insufficient competent evidence exists to support Plaintiff's version of the facts. Because the case comes to us at the summary judgment stage and because we decline to accept two of Plaintiff's contended-for facts as true and decline to include them in the facts for purposes of our review, we will explain our thinking.

Plaintiff points to evidence attempting to establish two additional facts as material. But, insufficient evidence supports the existence of the facts. See generally Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) ("For factual issues to be considered genuine, they must have a real basis in the record.") (quoting Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)). Plaintiff claims that evidence supports the fact that Davis had his hands raised when he stopped the car in the cul-de-sac. Plaintiff claims that evidence supports the fact that Davis posed no threat of serious physical harm to the officers when he was shot. The evidence pointed to for support of both of Plaintiff's alleged additional facts is an affidavit by Willie Hedge ("Hedge"), a witness to the events that occurred in the cul-de-sac.

i.

According to that affidavit, Hedge, from the front porch of his house on the cul-de-sac, "observed motion in the red car which I believe was [Davis] raising his hands towards the roof of his car in an attempt to surrender." The district court concluded that this statement was sufficient to create an issue of fact about whether Davis's hands were in the air. We disagree.

The Rules are clear: "Supporting and opposing affidavits shall be made on personal knowledge." Fed. R. Civ. P. 56(e) (emphasis added). Rule 56(e)'s personal knowledge requirement prevents statements in affidavits that are based, in part, "upon information and belief" -- instead of only knowledge -- from raising genuine issues of fact sufficient to defeat summary judgment. See Stewart v. Booker T. Washington Ins., 232 F.3d 844, 851 (11th Cir. 2000) ("upon information and belief" insufficient); Fowler v. Southern Bell Tel. and Tel. Co., 343 F.2d 150, 154 (5th Cir.1965) ("knowledge, information and belief" insufficient); Robbins v. Gould, 278 F.2d 116, 118 (5th Cir. 1960) ("knowledge and belief" insufficient).7 Likewise, an affidavit stating only that the affiant "believes" a Page 1279

certain fact exists is insufficient to defeat summary judgment by creating a genuine issue of fact about the existence of that certain fact. Jameson v. Jameson, 176 F.2d 58, 60 (D.C. Cir. 1949) ("Belief, no matter how sincere, is not equivalent to knowledge."); see also Tavery v. United States, 32 F.3d 1423, 1426 n. 4 (10th Cir. 1994); Hansen v. Prentice-Hall, Inc., 788 F.2d 892, 894 (2d Cir. 1986). Even if the affidavit is otherwise based upon personal knowledge (that is, includes a blanket statement within the first few paragraphs to the effect that the affiant has "personal knowledge of the facts set forth in th[e] affidavit"), a statement that the affiant believes something is not in accordance with the Rule. See Cermetek, Inc. v. Butler Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir. 1978) (equating "I understand" statement in affidavit to inadmissible "I believe" statements and concluding that statement is inadmissible despite general averment to personal knowledge at beginning of affidavit). The district court's treatment of the "believe" portion of Hedge's statement in his affidavit -- that Hedge "observed motion in the red car which I believe was [Davis] raising his hands towards the roof of his car in an attempt to surrender" -- as sufficient to create a fact issue about raised hands was error.8

ii.

According to the Hedge affidavit: "At no time did [Hedge] observe9 that the driver of the red car tried to run the deputies over. At no time did [Hedge] observe the driver of the red car aim his vehicle at the deputies. At no time did the red car appear to be a threat to any officer on the scene." The district court concluded that these statements created an issue of fact about whether Davis posed an immediate threat of serious physical harm to the officers in the cul-de-sac when he was shot.

We have accepted the first two above-quoted sentences as factual statements, although Page 1280

they are hotly contested.10 But, we cannot accept that Hedge's opinion that "[a]t no time did the red car [Davis] appear to be a threat to any officer on the scene" is outcome determinative for summary judgment. Passing over the usual lurking problems of conclusory opinions in affidavits, the chief reason...

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